Relevance
What is relevant evidence?
a. Evidence is relevant if it has any tendency to make the existence of any fact more or less
probable than it would be without the evidence
b. Evidence is relevant If it relates to the time, event, or person in a controversy
Rule 403 Balancing Test – excluding relevant evidence
a. A judge has broad discretion to exclude relevant evidence if its probative value is substantially
outweighed by:
i.
the danger of unfair prejudice;
ii.
confusion of the issues;
iii.
misleading the jury;
iv.
undue delay;
v.
wasting time; AND/OR
vi.
needless presentation of cumulative evidence


the courts want to protect the jury fact-finding process
the purpose is to encourage judicial efficiency
To be admissible, real evidence must be:
1. authenticated;
2. in substantially the same condition at trial; AND
3. legally relevant in a way that is not outweighed by another policy or rule of exclusion
Relevance
Excluding Relevant Evidence for Public Policy Reasons
Subsequent Remedial Measures
a. it’s beneficial to society for owners to take steps to prevent the occurrence of similar accidents
b. any evidence of actions taken by these owners after an injury is inadmissible because companies
would be less likely to take such measures if it could be used against them
c. Not admissible to prove:
i.
Negligence
ii.
Defect product or design
iii.
Culpable conduct
d. Is admissible to prove:
i.
Ownership, control, agency
ii.
To impeach a witness
iii.
To prove safer model feasible (only if D disputes these issues)
Compromise Offers or Settlement Negotiations
a. Offers, conduct, or statements made during negotiations to settle or compromise are not
admissible:
i.
to prove a disputed claim
ii.
to prove an amount; or
iii.
for impeachment purposes
b. a dispute must be pending at the time the statement was made
Offers to Pay Medical Expenses
a. payments or offers to pay are not admissible to prove liability, however, any conduct or
statements accompanying the offer to pay are admissible (like factual admissions)
Pleas
a. not admissible against the D:
i.
offers to plead guilty or no contest
ii.
withdrawn guilty pleas
iii.
fact admissions made during plea bargaining
b. guilty plea not withdrawn is admissible
Liability Insurance
a. evidence that a person was or was not insured is not admissible to prove fault
b. is admissible to prove ownership, agency, control
Character Evidence
a. Character evidence is evidence of a person’s moral attributes, such as the tendency to be
violent, honest, or careless
b. Any testimony or documents submitted for the purposes of proving a person acted in
conformity with a character trait is inadmissible
Forms or Method being used to prove Character
1) Reputation in the community
2) Opinion testimony
3) Specific instances of conduct
Direct-Examination
a. On direct, specific acts are not permissible to show character, only reputation and opinion
Cross-Examination
a. On cross, specific acts, reputation, or opinions are permissible to rebut character evidence
i.
Although specific acts may be asked on cross, extrinsic evidence of the specific acts is
not permissible
Civil Cases
a. generally, character evidence is inadmissible in civil cases unless
i.
person’s character itself is an ultimate issue (essential element)
o Defamation
o Negligent hiring
o Negligent entrustment
Reputation, Opinion, Specific Instances
o Child custody
ii.
iii.
the case is based on the D’s sexual predisposition (tendency)
o evidence of past sexual assault; or
o evidence of child molestation
M.I.M.I.C non-character purposes
Criminal Cases
a. generally, character evidence is inadmissible in criminal cases except when the D first introduces
his own character i.e., “opens the door”
b. the D may present positive character evidence to prove their innocence if it is:
i.
pertinent to the crime charged; and
ii.
through reputation or opinion testimony
c. if the D presents positive character evidence, the prosecution may rebut w/evidence by EITHER:
i.
on cross, introduce specific instances of conduct (must relate to same trait); OR
ii.
calling its own character witness through reputation or opinion testimony
Victim’s Character in Criminal Case
a. Defense may introduce evidence of the victim’s character in the form of reputation or opinion if
it is relevant to one of the D’s asserted defenses
i.
the most common example is evidence of the victim's violent character, offered when
the D is claiming self-defense
b. If the D chooses to introduce the victim’s character, then prosecution may rebut by:
i.
Showing the victim’s good character; OR
ii.
D possesses the same trait;
iii.
on cross, the prosecution may introduce specific instances of conduct
c. A victim’s sexual behavior or misconduct may be admissible in criminal cases if its probative
value substantially outweighs the danger of harm to the victim & unfair prejudice to any party
Character Evidence Admissible to Establish Something Other Than Character
Rule 404(b) Exceptions - M.I.M.I.C
a. Rule 404(b) allows evidence of a person's past criminal/immoral conduct to prove an issue other
than the defendant’s tendency to behave like a criminal
b. Specific acts are admissible to show:
1. Motive
2. Intent (or knowledge)
3. Absence of Mistake or accident
4. Identity;
5. Common plan or scheme, preparation; AND
A. Procedural Matters
a. Notice - If the D requests, the state must provide reasonable notice to use evidence of
other crimes
b. Foundation – the court must determine that the evidence of other criminal acts is
genuinely relevant to a contested matter other than the D’s criminal propensity. Care
should be taken that the supposed purpose is legitimate & not just a pretext (a reason
given in justification of a course of action that is not the real reason) for placing the D’s
criminal record before the jury. There must be sufficient proof that the D is the
perpetrator of the prior act. Evidence that the D was accused or arrested is not
sufficient.
c. 403 Balancing Test – the court must balance the probative value of the evidence against
its prejudicial effect pursuant to 403. The following considerations are relevant to the
judge
i.
Similarity – the more similar the prior crime is to the crime charged, the more likely
the jury will use the prior crime for propensity purposes, so the higher the prejudice
ii.
Recency – recent past acts have higher probative value than old ones, because
people change
iii.
Cumulative evidence – cumulative testimony about lots of prior incidents becomes
prejudicial because it shifts the jury’s attention away from the crime charged
d. Admonition (warning) to Jury – if the court admits other criminal activity, Rule 105
provides that the court must admonish the jury about the limited relevance of the
evidence if requested to do so by the defense
Person’s Habit and Organization’s Routine Practices
a. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that
on a particular occasion, the person or organization acted accordingly
b. “habit evidence” is a person’s routine responses to a particular situation to show
c. Foundation is usually laid by opinion testimony and not specific acts
Prior Similar Happening
evidence of a prior similar accidents or injuries caused by the same condition or event is admissible to
prove:
1. A defect or dangerous condition existed;
2. The D knew the condition or defect existed; and/or
3. The defect or condition was the cause of the current injury; and
4. Its probative value outweighs the risk of confusion or unfair prejudice
Authentication AKA “Laying the Foundation”
a. The process of admitting a piece of real evidence
b. The proponent of the evidence must offer proof that the item is what it is purported to be
c. Authentication is usually accomplished by calling a witness to testify that they recognize the
object, knows of its origin, or that the chain of custody remained intact